David Hugh Gardner v The Queen

[2006] ACTCA 8

DAVID HUGH GARDNER v THE QUEEN
[2006] ACTCA 8 (11 May 2006)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 51 - 2005
No. SCC 28 of 2005

Judges:        Higgins CJ, Connolly and Ryan JJ
Court of Appeal of the Australian Capital Territory
Date:           11 May 2006

IN THE SUPREME COURT OF THE       )          No. ACTCA 51 - 2005
  )          No. SCC 28 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID HUGH GARDNER

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, Connolly and Ryan JJ
Date:  11 May 2006
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 51 - 2005
  )          No. SCC 28 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID HUGH GARDNER

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Connolly and Ryan JJ
Date:  11 May 2006
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

1. Counsel, we are agreed upon the result of the appeal.  It is convenient now to deal with it.  I will deal with it relatively briefly.  The appeal, although described as being against conviction and sentence, seems, it is conceded, to be, in reality, an appeal against sentence.

1. The first ground raised in respect of that was whether the learned trial judge should have directed the jury in accordance with the decision of the High Court in KBT v R. This, as I apprehend it, would have required the jury to be directed to particular sexual acts and the evidence to support them would require agreement that those acts had been committed; that there were more than three of them; and agreement as to the same three sexual acts, for the purpose of recording a conviction of the maintenance of a sexual relationship.

1. There are two answers to that contention. The first and most obvious being that this is an appeal against sentence not against conviction, so that what the jury may or may not have been directed is to that extent, not a subject of the appeal.  But, even if it were, it seems to me that in the circumstances of this case, where the evidence against the accused at trial really was provided by himself - namely the video, in which he conveniently concedes that he is depicted upon it, and which itself contains impressions as to what time it was taken - both directly and indirectly, provides evidence of the alleged facts.

1. So a contention that it was necessary to draw that to the jury’s attention would, I think, have been otiose.  It would not have constituted an error in any event, at least not an appellable error. 

1. That being said, it plainly does not affect the question of the sentence, save that it does leave to the trial judge the task of determining for himself the acts which constituted the maintenance of the sexual relationship and forming a view about the seriousness of that conduct for the purpose of sentence.

1. In doing that the trial judge necessarily had to give the benefit of any reasonable doubt that arose to the appellant but there is no suggestion that he did not do so, nor that there was really much scope to have any doubt about what the jury had found and the facts upon which that finding was based.

1. Given that, the only other question that was raised in my mind was whether there had been a sufficient separation of the sexual acts.  Well, on reflection, it appears that that was indeed done.  Ms Whitbread had distinguished between the sexual acts depicted on the video, which were said to constitute the maintenance of the sexual relationship, with the occasions on which the video was shot.  The occasions of the shooting of the video constituted the other counts on the indictment of which the appellant was found guilty.  He was acquitted on one count.

1. In any event, the sentences for those latter matters were concurrent with the sentence in respect of the maintenance of the sexual relationship, so even to uphold a contention that there was duplicity would only lead to a setting aside of the finding and sentence in respect of those separate matters, but leave the sentence untouched in respect of the first count.

1. As I say, for reasons which I discussed with Mr Refshauge and in deference to the submissions which he made, I accept that that is not appropriate in this case. 

1. That leaves only a contention which really has not been more than noted, that the sentences in question should be regarded as manifestly excessive in all the circumstances.  I do not find that to be made out.  Eight years’ imprisonment with a non-parole period of four years seems eminently within range and for that reason I would dismiss the appeal. 

1. The order of the court is that the appeal is dismissed. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:    23 May 2006

IN THE SUPREME COURT OF THE       )          No. ACTCA 51 - 2005
  )          No. SCC 28 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID HUGH GARDNER

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Connolly and Ryan JJ
Date:  11 May 2006
Place:  Canberra

REASONS FOR JUDGMENT

CONNOLLY J:

1. I would also dismiss the appeal and endorse the remarks of the Chief Justice.  This decision of course should in no way suggest that in appropriate circumstances the direction endorsed in KBT v R (1997) 191 CLR 417 ought not be given. Clearly the circumstances of this case were that there was a videotape which was admitted by the appellant to contain images of himself which clearly showed multiple sexual acts which were able to be identified by way of date and time.

1. It seems to me that in those circumstances for the reasons given by the Chief Justice the warning was unnecessary and there would be no benefit served in directing trial judges to give unnecessary directions to a jury.

1. This is not an appeal against conviction but I also have no difficulty with the way the charges were framed, and it seems to me entirely appropriate in these circumstances that charges of maintaining a sexual relationship can be put to a jury together with additional charges relating to, as occurred here, the production of pornographic images which may have included the sexual acts that form the basis of the s 56 charge.

1. That leaves only the question of the sentence and it seems to me in the circumstances of this case with a man of nearly 40 years of age at the time who befriended a young girl of 14 and plied her with heroin and money to purchase drugs and engaged in these activities it brings it properly within the upper ranges of sentencing.  That is within a range that the Parliament has said attracts a maximum potential penalty of life imprisonment.

1. It seems to me that eight years’ imprisonment to serve four is entirely within range, this was a serious offence which involved an element of predatory behaviour, a man of some means befriending a vulnerable 14 year old and plying her with money and drugs in order to indulge his sexual desires. The sentencing judge, it seems to me, was appropriately within range.  I would dismiss the appeal.

I certify that the preceding paragraphs numbered twelve (12) to sixteen (16) are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date:    23 May 2006

IN THE SUPREME COURT OF THE       )          No. ACTCA 51 - 2005
  )          No. SCC 28 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID HUGH GARDNER

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Connolly and Ryan JJ
Date:  11 May 2006
Place:  Canberra

REASONS FOR JUDGMENT

RYAN J:

1. For the reasons explained by the Chief Justice I too would dismiss the appeal.

I certify that the preceding paragraph numbered seventeen (17) is a true copy of the Reasons for Judgment herein of his Honour, Justice Ryan.

Associate:

Date:    23 May 2006

Counsel for the Appellant:  Ms J Saunders
Solicitor for the Appellant:  Romano Satsia Kordis Legal
Counsel for the Respondent:  Mr R Refshauge SC
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  11 May 2006
Date of judgment:  11 May 2006